Tuesday, August 17, 2010

The Worst Kind of Politics: Vote-seeking by Promoting Constitutional and Statutory Violations

It's an election year, which more than anything else means that politicians are even more mendacious and unprincipled than usual. In any other year, I imagine the fight over the proposed Islamic community center a couple of blocks from "Ground Zero" would be minor, if not non-existent. However, because it is an election year, we can expect some politicians seeking re-election to use it as a wedge issue. According to a story in today's New York Times (here) that is exactly what many Republican candidates (and potential 2012 presidential contenders, such as Newt Gingrich) are trying to do. As a matter of campaign strategy, playing on the xenophobic fears of the Ignorami (a.k.a., the median voter) might well be successful. But it's potential instrumental value does not make it the right thing to do.

If successful, the political campaign to block the Islamic community center in lower Manhattan would probably violate the First Amendment's Free Exercise Clause, as well as the 2000 Religious Land Use and Institiutionalized Persons Act (RLUIPA) (42 USC sec. 2000cc-1) , which provides (in relevant part):

      (1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
         (A) is in furtherance of a compelling governmental interest; and
         (B) is the least restrictive means of furthering that compelling governmental interest.
      (2) SCOPE OF APPLICATION- This subsection applies in any case in which--
         (A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
         (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
         (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
      (1) EQUAL TERMS- No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
      (2) NONDISCRIMINATION- No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
      (3) EXCLUSIONS AND LIMITS- No government shall impose or implement a land use regulation that--
         (A) totally excludes religious assemblies from a jurisdiction; or
         (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

This law was passed by unanimous consent of both houses of a Republican-dominated Congress. Some of those who supported the law are now seeking to subvert it for short-term political gain. I have never been a particular fan of the RLUIPA statute, which favors religious land uses over others in the regulatory process. In my view, religious institutions already receive too much preferential treatment from the government. But if they are going to get special treatment, they should all get it, as required by both the Equal Protection Clause of the Constitution and section (2)(b)(1) of RLUIPA.

In the New York Times article, James Renacci, a Republic congressional candidate in Ohio, claims that many Americans are "furious" about the possibility that a mosque might be located near the hallowed ground of the World Trade Center. He finds it "very troubling to see President Obama again turning a deaf ear to the thoughts and concerns of a majority of Americans." But on this issue, the Constitution is quite clear that the "thoughts and concerns of a majority of Americans" just don't matter. That's the whole point of having constitutionally protected rights. We don't protect freedom of speech or religion only when its convenient, or only when "most Americans" approve. If that's all the Bill of Rights meant, then it never was worth the paper it was printed on.

But, of course, candidate Renacci knows that standing up for fundamental constitutional principles will not win him nearly as many votes as fomenting religious intolerance. The same is true of Newt Gingrich, who believes that because Saudi Arabia doesn't have any Christian churches or Jewish synagogues, we shouldn't allow any more mosques in this country (see here). I find it remarkable that anyone in this country would be willing to rescind our own cherished constitutional liberties and traditions simply because the Saudis do not abide by them in their country.

If a politician doesn't want an Islamic community center near Ground Zero, the first thing she or he should do is call for repeal of the First Amendment, the Equal Protection Clause, and the RLUIPA. That is the only constitutionally appropriate approach to the "problem." It is similar to the constitutional issue confronting politicians who want to deny citizenship to the American-born children of foreign nationals. To their credit, they are not calling on Congress to ignore the 14th Amendment's citizenship provision but are calling for its repeal through the normal amendment process. Although I do not agree with their politics, I can appreciate that they are treating the Constitution with due respect. The same cannot be said of candidates who would block the Islamic community center from lower Manhattan.

I expect politicians to say and do pretty much anything to get elected. That doesn't mean I have to like it. Much of what they say and do (on both sides), I find deplorable. But the dispute over the Islamic center crosses a very important boundary between "normal" political mendacity and a completely unprincipled willingness to throw the Constitution and laws of the United States under the bus just to scavenge votes from the Ignorami, who only care about the Constitution when it supports their views. Politicians who show such little respect for the laws do not deserve to be elected or re-elected as law-makers.

1 comment:

  1. This has been something that has been bothering me for some time so thank you for clarifying the law. I fully support your last sentence


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